Environmental law

 

Denmark has a long tradition of environmental protection, particularly groundwater protection, as groundwater may be and is used as drinking water without any treatment apart from any filtration. Thus approx 100 ago, the first genuine prohibition against contamination of water was adopted in Denmark, but please note that the level of what is considered to be contamination has changed considerably over time and the prohibition against contamination did not involve any liability for any accident.

 

In 1973, coming into force in 1974, the first Danish Environmental Protection Act was introduced, aiming primarily at regulating heavily polluting activities and at the protection of groundwater as well as surface water.

 

In 1992, the current Environmental Protection Act came into force. That Environmental Protection Act has, however, seen several amendments since its original promulgation.

 

The current Environmental Protection Act comprises any potentially polluting activity, including eg pollution in the form of vibration, noise, odour or thermal stress. Furthermore, the current Environmental Protection Act sets forth the main framework for waste management. The general rules in terms of administrating the Act are the Polluter Pays Principle (PPP) and the Best Available Technology (BAT).

 

In terms of its structure, the Act stipulates a number of principles and provisions concerning the protection of soil, groundwater and surface water as well as more specific rules concerning approval of heavily polluting activities, regulation of environmental aspects as regards other types of activities, general rules on recycling as well as cleaner technology and provisions on monitoring the environmental affairs of businesses.

 

Heavily polluting activities may not be set up or commenced until an express approval has been issued. What is considered heavily polluting activities appears from a special statutory order that has seen and still sees changes in line with developments in the current state of knowledge as to what is considered heavily polluting activities as well as technological developments leading to a type of activity being changed in general, thus reducing the risk of pollution.

 

At the time of approval of a heavily polluting activity, specific terms for the establishment and operation of the activity will be laid down, including the monitoring to be carried out by the business. Furthermore, as for some types of activities, an additional requirement will be the provision of financial security in relation to the authorities for the fulfilment by the business of its obligations, especially in relation of waste management.

 

As a general rule, an approval will be valid for eight years in the sense that only in very special circumstances will it be possible to impose stricter or additional requirements on the business within the first eight years of the approval. After a period of eight years, the authorities may change the terms pertaining to the operation of the activity and it is not uncommon for a business and the authorities to agree that the business is to apply for an entirely new approval laying down generally new terms.

 

Whether or not a business is subject to the EIA rules has no bearing whatsoever on any approval pursuant to the Environmental Protection Act and there is thus no requirement as to an EIA screening or any EIA report prior to any permission for establishment. The rules on EIA reports relate to the Danish Planning Act, but the EIA report and the draft approval of such report by the authorities are to be published at the same time as the draft approval of the activity pursuant to the Environmental Protection Act.